03-004660 In Re: Petition For Rule Creation - Split Pine Community Development District vs. * Status: Closed Recommended Order on Monday, March 29, 2004.

Summary: Petition to establish a community development district, alongside a sister community development district in an adjoining county, as part of a single development of regional impact, seemed to meet all statutory requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: PETITION FOR RULE )

CREATION - SPLIT PINE COMMUNITY ) Case No. 03 - 4660

DEVELOPMENT DISTRICT. )

)

ADMINISTRATIVE LAW JUDGE'S REPORT TO

THE FLORIDA LAND AN D WATER ADJUDICATORY COMMISSION

On February 19, 2004, a local public hearing under Section

190.005(1)(d), Florida Statutes, was conducted in Jacksonville,

Florida, before J. Lawrence Johnston, Administrative Law Judge

(ALJ) of the Division of Administrat ive Hearings (DOAH).

APPEARANCES

For Petitioner: Cheryl G. Stuart, Esquire

Jonathan T. Johnson, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Tallahassee, Florida 32301 - 1517

STATEMENT OF THE ISSUE

The issue before th e Florida Land and Water Adjudicatory

Commission (FLWAC) in this proceeding is whether to grant the

Petition for Establishment of the Split Pine Community

Development District (Petition). The local public hearing was

for the purpose of gathering informati on in anticipation of

rulemaking by FLWAC.

PRELIMINARY STATEMENT

The Petition was filed by SONOC Company, LLC, a Delaware

limited liability company (Petitioner), on December 2, 2003. It

requested that FLWAC adopt a rule to establish a community

develop ment district, to be called the Split Pine Community

Development District, on certain property in the City of

Jacksonville, Duval County, Florida. The Petition includes

thirteen exhibits.

FLWAC referred the Petition to DOAH on December 8, 2003,

for assi gnment of an ALJ to conduct a local public hearing under

Section 190.005(1)(d), Florida Statutes. (All statutory

references are to the 2003 codification of the Florida

Statutes.) Notice of the public hearing was published in The

Florida Times - Union on Ja nuary 22 and 29, 2004, and February 5

and 12, 2004, in accordance with Section 190.005(1)(d), Florida

Statutes. The local public hearing was held at 1:00 p.m., on

Thursday, February 19, 2004, at the Residence Inn at Butler

Boulevard, Conference Room, 1055 1 Deerwood Park Boulevard, in

the City of Jacksonville, Duval County, Florida.

At the local public hearing, Petitioner presented the

testimony of Gregory J. Barbour, employed by The PARC Group, of

Jacksonville, Florida; Douglas C. Miller, employed by Engla nd -

Thims & Miller, Inc., of Jacksonville, Florida; Carey Garland,

employed by Fishkind & Associates, Inc., of Orlando, Florida;

and Gary R. Walters, employed by Gary Walters and Associates, of

Ormond Beach, Florida. Petitioner introduced nine lettered

exh ibits, A through I, which are identified on page 3 of the

Transcript of Record. No members of the public testified during

the hearing. (Tr. 106.)

The Transcript of the local public hearing was filed on

March 12, 2004. Petitioner filed a “Proposed Admini strative Law

Judge's Report to Florida Land and Water Adjudicatory

Commission," which has been considered and largely adopted in

the preparation of this Report. References in the Report to

"Tr." are to the cited page of the Transcript. References to

Hear ing Exhibits are to exhibits introduced during the local

public hearing. The exhibits attached to the Petition are

referred to as Petition Exhibits.

SUMMARY OF RECORD

A. Petition and Related Matters

1. The Petition was submitted to the FLWAC, the City of

Jacksonville, Duval County, Florida, and St. Johns County,

Florida. (Tr. 17 - 18.)

2. The land for the District is located within the City of

Jacksonville, Duval County, Florida. Petition Exhibit 1 depicts

the general location of the District. The p roposed District

covers approximately 2,015 acres of land. The metes and bounds

description of the external boundaries of the District is set

forth in Petition Exhibit 2. There is no real property within

the external boundaries of the District that is ex cluded from

the District. A more detailed map showing the location of the

District is provided in Petition Exhibit 3.

3. Petition Exhibit 4 incorporates the written consent to

the establishment of the District by the owner of 100 percent of

the real pro perty to be included in the District. The sole

owner of the real property is SONOC Company, LLC.

4. The proposed District will be named the "Split Pine

Community Development District."

5. The names and addresses of those designated to be the

five initi al members of the Board of Supervisors of the District

are as follows:

Name Address

Gregory J. Barbour 4314 Pablo Oaks Court

Jacksonville, Florida 32224

John S. Hewins 4314 Pablo Oaks Court

Jacksonville, Flo rida 32224

Anne T. Klinepeter 4314 Pablo Oaks Court

Jacksonville, Florida 32224

Arden A. Tomczak 4314 Pablo Oaks Court

Jacksonville, Florida 32224

Lauren A. O’Steen 4314 Pablo Oaks Court

Jacksonville, Florida 32224

6. The desi gnated initial members of the Board of

Supervisors are all citizens of the United States and residents

of the State of Florida. (Tr. 19.)

7. Petition Exhibit 5 depicts the existing land uses

within and abutting the District. The property to be included

w ithin the District is presently largely undeveloped and is

bounded by agricultural uses.

8. The future general distribution, location, and extent

of the public and private land use proposed within the District

by the future land use element of the applicab le comprehensive

plan are shown on Petition Exhibit 6. These proposed land uses

are consistent with the effective City of Jacksonville

Comprehensive Plan. (Tr. 104.) All land within the District is

subject to the Nocatee Development of Regional Impact ( DRI)

Development Order adopted by City of Jacksonville Ordinance

2001 - 13 - E on February 27, 2001. (Hearing Composite Exhibit F;

Hearing Exhibit D.)

9. The proposed development plan for the lands within the

District is shown in Petition Exhibit 8. Based upon currently

available data, construction of the proposed District facilities

and services is expected to occur over a twenty - four year

period. (Petition Exhibit 11.)

10. Petition Exhibit 9 shows the existing major trunk

water mains, sewer intercepto rs, major outfall canals, and

drainage basins for the lands to be included within the

District.

11. Petition Exhibit 10 describes the proposed timetable

for the construction of the District improvements and the type

of facilities and services that Petiti oner presently expects the

District to finance, construct, and install.

12. Based upon currently available data, Petition Exhibit

11 outlines the estimated cost of constructing the proposed

District improvements. This is a good faith estimate, but it is

not binding on Petitioner or the District and is subject to

change.

13. Petition Exhibit 12 is a Statement of Estimated

Regulatory Costs (SERC) prepared in accordance with the

requirements of Section 120.541(b), Florida Statutes. The SERC

meets all of the requirements of Section 120.541(b), Florida

Statutes.

14. Prior to the filing of this Petition, Petitioner

submitted a copy of the Petition with Petition Exhibits and paid

the required filing fee of $15,000 to the City of Jacksonville

in accordance wi th Section 190.005(1)(b), Florida Statutes.

B. Additional Information from Local Public Hearing

15. The local public hearing on the Petition was noticed

for and was held on February 19, 2004, in the conference room of

the Residence Inn at Butler Bouleva rd, an accessible location,

at 10551 Deerwood Park Boulevard, in the City of Jacksonville,

Duval County, Florida. (Tr. 1.) Notice of the hearing was

advertised on January 22 and 29, 2004, and February 5 and 12,

2004, in The Florida Times - Union, a newspap er of general paid

circulation in Duval County, and of general interest and

readership in the community, not one of limited subject matter,

pursuant to Chapter 50, Florida Statutes. (Hearing Exhibit E.)

The published notices gave the time and place for t he hearing, a

description of the area to be included in the community

development district (CDD), including a map showing clearly the

area to be covered by the CDD and other relevant information.

(Hearing Exhibit E.) The advertisements were not placed in that

portion of the newspaper where legal notices and classified

advertisements appear. (Hearing Exhibit E.)

16. The hearing commenced 10 minutes after the noticed and

scheduled time in order to give any persons who wanted to attend

ample time to do so . (Tr. 4.) Appearances were made by counsel

for Petitioner. (Tr. 4.) No other members of the public spoke

at the hearing. (Tr. 114.) No party has formally intervened in

this administrative proceeding. (Tr. 6.)

17. The first witness for Petitioner was Gregory J.

Barbour. Mr. Barbour is President of The PARC Group. (Tr. 8.)

18. Mr. Barbour identified a letter, dated December 19,

2003, that had been sent by Charles Gauthier, the Chief

Comprehensive Planner with the Department of Community Affairs

(DCA) to Michael Hansen of the FLWAC. (Tr. 26 - 27; Hearing

Exhibit D.) The letter states that the public and private land

uses proposed within the District are consistent with the

applicable City of Jacksonville Comprehensive Plan, and the DCA

has identi fied no potential inconsistency with Chapter 163,

Florida Statutes. (Hearing Exhibit D.)

19. The development in which the District will be

established is called Nocatee. (Tr. 28.) Mr. Barbour testified

that the land within the Nocatee development is ge ographically

located in Duval and St. Johns Counties, so there is a need for

two CDDs. (Tr. 19 - 20, 28.) A petition to establish the

“Tolomato Community Development District” has been filed for the

remaining land within the Nocatee development located in St.

Johns County, Florida. (Tr. 19 - 20.) Mr. Barbour testified that

development will occur over an extended period, and a CDD is the

best alternative to provide the long - term stability needed for

the construction and maintenance of the major infrastructur e

that will serve the residents within the development, in his

opinion. (Tr. 29.) Mr. Barbour also testified that the CDD has

the ability to efficiently finance the major infrastructure

earlier than might otherwise be possible. (Tr. 29.)

20. Mr. Barbo ur identified City of Jacksonville Ordinance

No. 2001 - 13 - E and St. Johns County Resolution 2001 - 30 as the

Nocatee Development of Regional Impact Development Orders for

the entire project. (Tr. 29 - 30.) These approvals were marked

as Composite Exhibit F an d admitted into evidence. (Tr. 30.)

21. Mr. Barbour testified that as of the date of the

hearing, Petitioner, SONOC Company, LLC, is still the sole

landowner within the District. (Tr. 14 - 15, 30.)

22. The next witness for Petitioner was Douglas C. Mille r.

Mr. Miller is Chief Executive Officer of England - Thims & Miller.

(Tr. 31 - 32.) Based upon his qualifications, education, and

other credentials, Mr. Miller was accepted as an expert in the

field of civil engineering on the provision of public

infrastru cture. (Tr. 32 - 33.)

23. Mr. Miller testified that the Nocatee DRI development

orders assess the specific and unique impacts caused by this

particular project. (Tr. 110.) In his view, it is appropriate

for the costs of the impacts associated with the pr oject to be

borne by the residents and landowners within the District.

(Tr. 110 - 111.) For this reason, Mr. Miller testified that, in

his expert opinion, the District is the preferred alternative to

provide the infrastructure because it is the most effici ent

means for growth to pay for itself. (Tr. 111.)

24. Mr. Miller also testified that the combination of the

District and its sister district, the Tolomato Community

Development District, encompass all of the area within the

Nocatee development. (Tr. 4 8 - 49.) Mr. Miller noted that both

development orders contemplate the establishment of CDDs to

provide the infrastructure and long - term operation and

maintenance for the development. (Tr. 111 - 112; Composite

Hearing Exhibit F: Ordinance No. 2001 - 13 - E of C ity Council of

the City of Jacksonville, Duval County, Florida, pp. 46 - 47; and

Resolution No. 2001 - 30 of the Board of County Commissioners of

St. Johns County, Florida, pp. 54 - 56.)

25. Mr. Miller testified that the costs to provide the

joint master infras tructure, which will benefit the residents

and landowners in both CDDs, will be allocated between the

districts based on the benefits received. (Tr. 108.) These two

districts are expected to enter into interlocal agreements to

provide the joint master in frastructure, including the

significant regional roadway improvements that are required.

(Tr. 108 - 110.) The infrastructure improvements that benefit

only individual residents, such as neighborhood parks and

infrastructure, will be apportioned to the land within that

district. (Tr. 109.)

26. The next witness for Petitioner was Carey Garland.

Mr. Garland is employed by Fishkind & Associates, as Director of

Public Finance. (Tr. 52.) Based upon his qualifications,

education, and other credentials, Mr. Ga rland was accepted as an

expert in the field of economic and financial analysis.

(Tr. 53.)

27. Mr. Garland testified that he prepared SERC. (Tr. 55 -

56.) Mr. Garland testified that, in his expert opinion, the

District is expected to be financially viable and feasible.

(Tr. 63 - 64.)

28. Mr. Garland opined that the establishment of the

District is not inconsistent with the state comprehensive plan

for several reasons. (Tr. 73.) Establishment of the District

is consistent with Subject Number 17 and Subject Number 20 of

the State Comprehensive Plan. (Tr. 65.) The goal of Subject

Number 17 is the protection of existing public facilities and

the planning and financing of new facilities to serve residents

in a timely, orderly, and efficient manner. (Tr. 65.) The

District will provide its improvements and facilities at no

capital cost to the City of Jacksonville, which allows the City

to focus its resources on public facilities outside of the

District. (Tr. 65.)

29. Policy 3 of Subject Number 17 of the Sta te

Comprehensive Plan supports the allocation of the costs of new

public facilities on the basis of benefits received by existing

and future residents. (Tr. 65.) The District is being

established for the specific purpose of serving the future

residents w ithin its boundaries, whose landowners and residents

will receive the benefits of the new public facilities. (Tr.

65 - 66.) It is these landowners and residents who will directly

bear the costs associated with the construction, operation, and

maintenance o f the improvements. (Tr. 66.)

30. Policy 6 of Subject Number 17 provides for the

identification and implementation of innovative, fiscally sound,

and cost - effective methods for financing public facilities.

(Tr. 66.) The District is the best alternativ e to finance the

delivery of public services because it brings the cost of

managing and financing public facilities down to a level of

government closest to its beneficiaries and connects those who

pay for facilities with those who directly benefit from th ose

facilities and services. (Tr. 66.) The District provides a

consistent, innovative, and fiscally sound alternative for

financing public facilities. (Tr. 66.)

31. The goal of Subject Number 20 is for Florida

government to economically and efficiently provide the amount

and quality of services required by the public. (Tr. 67.) The

District would finance and deliver its own public facilities and

cooperate with its sister community development district, the

Tolomato Community Development District, to e fficiently provide

some of the master infrastructure. (Tr. 67.)

32. Policy 2 of Subject Number 20 permits the

establishment of independent special taxing districts with

uniform general law standards and procedures that do not

overburden other governments and their taxpayers. (Tr. 67.)

The District is established pursuant to Chapter 190, Florida

Statutes; it is professionally managed, financed, and governed

by those whose property directly receives the benefits of the

improvements; and the District does n ot burden the general

taxpayer within the City of Jacksonville with the cost to

provide improvements within the District. (Tr. 68.)

33. Mr. Garland also opined that, from an economic

perspective, the CDD is the best alternative to deliver the

infrastructu re to the community. (Tr. 69 - 72.) Establishment of

a CDD permits the community to make provisions for its own

infrastructure needs by generally allocating costs to those

persons who obtain a benefit from the services provided.

(Tr. 70.) There are no ot her alternatives as effective and

efficient as a CDD to provide for such a financial structure.

(Tr. 70.)

34. The last witness for Petitioner was Gary Walters.

Mr. Walters is employed by Gary Walters and Associates, as

President. (Tr. 74.) Based upon h is qualifications, education

and other credentials, Mr. Walters was accepted as an expert in

the field of planning, specifically comprehensive planning, and

district management. (Tr. 75.)

35. Mr. Walters testified that, in his expert opinion, the

area of land to be included in the District is amenable to

special district governance and that the District is the best

alternative to provide the proposed facilities and services that

the District will need. (Tr. 100 - 101.) The District is better

than other ava ilable alternatives, such as the City of

Jacksonville or private means with maintenance delegated to a

property owners association, because the District is better able

to focus attention on when, where, and how the next system of

infrastructure will be req uired. (Tr. 101 - 102.) This results

in a full utilization of existing facilities before new

facilities are constructed, which reduces the delivered cost to

the citizens being served. (Tr. 102.)

36. Only a community development district allows for the

ind ependent financing, administration, operation, and

maintenance of the land within the District. (Tr. 103.) Only a

community development district allows district residents to

ultimately control the district board and, through this

representation, the dist rict improvements. (Tr. 103.)

37. Mr. Walters testified that, in his expert opinion, the

facilities and services to be provided by the District will be

compatible with the capacity and uses of existing local and

regional community development services and facilities.

(Tr. 99 - 100.) There is no duplication of the improvements and

services anticipated to be provided by the District. (Tr. 100.)

No other entity has planned to provide the improvements and

services contemplated by the District. (Tr. 100.) T he District

improvements and services to be provided by the District are a

logical and efficient extension of existing systems into the

targeted development area within the District. (Tr. 99 - 100.)

38. Mr. Walters testified that, in his expert opinion, the

area to be included within the District is of a sufficient size

and is sufficiently compact and contiguous to be developed as

one functional interrelated community. (Tr. 97 - 99.) From a

planning perspective, functional interrelation means that each

commu nity purpose has a mutual reinforcing relationship to other

community purposes. (Tr. 98.) Each function must be designed

to contribute to the development or maintenance of the community

as a whole. (Tr. 98.)

39. The District is sufficient in size to con stitute a

functionally interrelated community with a range of improvements

and services to be provided. (Tr. 98.) The District will have

sufficient population density and property size to require all

the basic facilities and services of a community. (Tr . 98.)

The compact configuration of the land allows the District to

deliver the proposed construction and perpetual maintenance of

any District improvements in a long - term and cost - efficient

manner. (Tr. 99.)

APPLICABLE LAW

A. General

40. Section 190 .005(1), Florida Statutes, provides that

the sole means for establishing a CDD of 1,000 acres or more

shall be by rule adopted by the FLWAC in granting a petition for

the establishment of a CDD.

41. Section 190.005(1)(a), Florida Statutes, requires that

the petition be filed with the FLWAC. The petition must contain

various elements as set forth in Section 190.005(1)(a), Florida

Statutes. The petitioner must also meet certain procedural

requirements as set forth in Section 190.005(1)(b), Florida

Statute s.

42. Section 190.005(1)(c), Florida Statutes, permits the

county and each municipality whose proposed boundaries are

within or contiguous to the CDD to conduct an optional public

hearing to consider the petition. Such local, general - purpose

governments may then present resolutions to the FLWAC as to the

establishment of a CDD on the property proposed in the petition.

No such public hearing was held by the City of Jacksonville to

consider the Petition in this case.

43. Section 190.005(1)(d), Florida Statutes, requires an

ALJ to conduct a local public hearing pursuant to Chapter 120,

Florida Statutes. The hearing "shall include oral and written

comments on the petition pertinent to the factors specified in

paragraph (e)." The petitioner must publish notice of the local

public hearing once a week for four successive weeks immediately

prior to the hearing.

B. Factors by Law to be Considered for Granting or

Denying Petition

44. Section 190.005(1)(e), Florida Statutes, provides that

the FLWAC co nsider the entire record of the local hearing, the

transcript of the hearing, any resolutions adopted by local

general - purpose governments as provided in paragraph (c), and

the following factors and make a determination to grant or deny

a petition for the establishment of a community development

district:

1. Whether all statements contained within the

petition have been found to be true and correct.

2. Whether the establishment of the district is

inconsistent with any applicable element or portion of th e state

comprehensive plan or of the effective local government

comprehensive plan.

3. Whether the area of land within the proposed

district is of sufficient size, is sufficiently compact, and is

sufficiently contiguous to be developable as one functiona l

interrelated community.

4. Whether the district is the best alternative

available for delivering community development services and

facilities to the area that will be served by the district.

5. Whether the community development services and

facilit ies of the district will be incompatible with the

capacity and uses of existing local and regional community

development services and facilities.

6. Whether the area that will be served by the

district is amenable to separate special - district government .

COMPARISON OF INFORMATION IN RECORD TO APPLICABLE LAW

A. Procedural Requirements

45. The evidence reflects that Petitioner has satisfied

the procedural requirements for the establishment of the

District on the proposed property by paying the $15,000 filing

fee, filing a petition in the proper form and with the required

attachments, and publishing statutory notice of the local public

hearing.

B. Six Factors of Section 190.005(1)(e), Florida Statutes

46. The evidence is that the statements in the P etition

and its attachments are true and correct. See Tr. 14 - 17

(Barbour); Tr. 38 (Miller); Tr. 56 (Garland).

47. The evidence is that establishment of the District on

the proposed property is not inconsistent with the State Plan

and City of Jacksonville Comprehensive Plan. See Tr. 64 - 68

(Garland); Tr. 88 - 97 (Walters); Hearing Exhibit D.

48. The evidence is that the size, compactness, and

contiguity of the proposed land area are sufficient for the area

to be developed as "one functional interrelated com munity." See

Tr. 41 - 42 (Miller); Tr. 97 - 99 (Walters).

49. The evidence is that the District is the best

alternative presently available for delivering community

development systems, facilities, and services to the proposed

land area. See Tr. 29 (Barbou r); Tr. 44 - 47 (Miller); Tr. 69 - 72

(Garland); Tr. 101 - 103 (Walters).

50. The evidence is that the services and facilities

provided by the District will be compatible with the capacity

and uses of existing local and regional community development

services a nd facilities. See Tr. 42 - 43 (Miller); Tr. 99 - 100

(Walters).

51. The evidence is that the proposed area to be served by

the District is amenable to separate special - district

government. See Tr. 43 - 44 (Miller); Tr. 68 - 69 (Garland); Tr.

100 - 101 (Walters) .

CONCLUSION

Based on the record evidence, the Petition appears to meet

all statutory requirements, and there appears to be no reason

not to grant the Petition and establish the proposed Split Pine

Community Development District by rule. For purposes of

d rafting such a rule, a metes and bounds description of the

proposed Split Pine Community Development District may be found

in Petition Exhibit 2. Also, the five persons designated to

serve as the initial members of the Board of Supervisors of the

Split Pi ne Community Development District are identified in

paragraph 5 of the Petition.

DONE AND ENTERED this 29th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 2004.

COPIES FURNISHED :

Michael P. Hansen, Secretary

Florida Land and Water

Adjudicatory Commission

The Capitol, Room 2105

Tallahassee, Florida 32399

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, R oom 2105

Tallahassee, Florida 32399

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 1001

Cheryl G. Stuart, Esquire

Hopping, Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Room 325

Tallahassee, Florida 32399 - 2100